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Malpractice war calls for academic task force

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By MARTIN DYCKMAN, Times Associate Editor

© St. Petersburg Times
published July 21, 2002


TALLAHASSEE -- What Florida needs least, but is least likely to escape, is another malpractice war between doctors and trial lawyers. The rhetorical guns are already thundering. Arsenals are beginning to swell with money, the root of all political evil. This is good news only for politicians on the take and for the campaign advertising industry.

We've been through this before. Impatient with what the Legislature already had tried to do for them, including limits on lawyers' contingency fees, the doctors went to the voters with a 1998 ballot initiative to set a $100,000 limit on awards for pain and suffering and other "noneconomic" damages in all suits over death and injury. The plaintiffs' lawyers fought back. Between them, the two sides spent nearly $16-million, equal to almost $23-million today. The lawyers won, with 56.6 percent of the vote. As wide as that margin was, it was still close enough to suggest that a less stingy limit might have carried the day.

Curiously, the medical malpractice insurance issue then appeared to fade largely away. Whatever the reasons, insurance companies began to find the Florida market so attractive that they bid premiums down.

Now, however, rates are said to be rising nationwide, and nowhere as fast as in South Florida, where a gynecologist can see a bill for $200,000 or more. Companies are quitting the market. Some doctors say they can't get insurance at any price. Alan Levine, the administrator at the Sun City hospital, says that of his six surgeons, only one may be left by winter. He can't wait for the year-long study that Senate President-designate Jim King is proposing.

The doctors are raising a $20-million war chest for another initiative campaign aimed at limiting awards. They're also talking of $1-million in campaign contributions, most if not all to the ruling Republicans. One goal: a law requiring expert witnesses to be Florida-licensed doctors in the same specialty as the defendant.

Intending to be neither outdone or outspent, the trial lawyers are threatening initiatives to strip the license of any doctor who loses three malpractice suits and open to public view all medical records, of doctors as well as of hospitals, "relating to any adverse medical incident."

None of this belongs in a state constitution, where it would take yet another statewide referendum to change it. The only thing to be said for any of these initiatives is that they are at least about people, unlike one dealing with the comfort of pregnant pigs.

Little if any of this would make good legislation either, because all of it is arbitrary. To say that an expert witness must be licensed in Florida is akin to allowing only a Los Angeles cop to testify against a Los Angeles cop. The worst is not even that some of this garbage might pass, but that it will do nothing to restrain premiums while the real reasons for the medical malpractice crisis go undiscovered and unsolved.

The only real winners, then, would be the insurance industry, which already influences the Legislature far more than anything ought to.

To hear the lawyers, the malpractice insurers brought on the crisis by gambling too heavily on the stock market for the sake of keeping premiums low. That is true to an extent. But it is also true that carriers in the Florida market have begun to experience heavier underwriting losses in addition to their investment losses. Regardless of the stock market, lawsuits are costing them more.

"There are an increasing number of companies that are seeing underwriting losses over the course of the last four years," says Steve Roddenberry, deputy director of insurance services at the Florida Department of Insurance. "In 1998, there were 12 companies that had losses greater than the premiums they wrote. In 2001, that number is 23."

As Roddenberry is quick to say, however, such data doesn't explain on its face why some companies are still making money while some are losing more. It would take a careful study to answer those and other questions that might point to reasonable solutions. An honest, thorough study is the one thing Florida does need.

The trouble with studies has to do with who appoints them, as with tax reform commissions whose members oppose tax reform. Given Florida's recent history in this regard and the "tort reform" leanings of the Republicans, it is hard to imagine the Legislature or the governor commissioning a study that wouldn't be suspect of bias toward the doctors or insurance companies.

But there is a way in which it might be done. Let Gov. Jeb Bush and Insurance Commissioner Tom Gallagher jointly appoint a task force from among nominees proposed by the various sides. The catch is they could be neither doctors nor lawyers nor insurance executives, and would be subject to challenges for cause. This would exclude the lobbyists and politicians who usually rule the blue-ribbon roost. In their place you would find university presidents and other academics who would be more likely to be influenced by evidence than by biases.

Florida tried something like this before during the malpractice crisis of the 1980s. They called it the Academic Task Force, and it worked.

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